Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of "Bearing Arms" for Self-Defense

By Michael P. O'Shea | 61 Am. U. L. Rev. 585 (2011)

This Article sheds light on a major constitutional question opened up by the United States Supreme Court’s landmark decisions in District of Columbia v. Heller and McDonald v. City of Chicago: Does the Second Amendment “right to bear arms” include a right to carry a handgun for self-defense outside the home? Some courts and commentators have declared that Heller held that the Second Amendment right is limited to the home, so that restrictions on handgun carrying do not even fall within the scope of the Second Amendment. Others assert that the potential applicability of the right to bear arms outside the home is simply a “vast terra incognita,” devoid of guidance, into which lower courts should hesitate to venture for prudential reasons.

These courts are mistaken about Heller and mistaken about the absence of guidance. As I show, Heller and McDonald have two holdings, not just one: they adopted a particular interpretation of the right to bear arms, then applied that understanding to the bans on handgun possession that were before them. The right that Heller and McDonald recognized—the individual “right to . . . bear arms for the purpose of self-defense”—has a long tradition in the state courts, and that tradition supports a right to carry outside the home. Post-Heller lower court decisions that confine the scope of the Second Amendment right to the walls of the house have reached those results, not by addressing and distinguishing this large and relevant body of precedent, but by ignoring it.

The centerpiece of the Article is an analysis of the past 190 years of state court constitutional precedent on arms carrying. I show that there have been two different traditions of the individual right to bear arms: a defense-based right, under which courts construe the right to bear arms as protecting a meaningful right to carry handguns for self-protection, and a “hybrid” or civic-based right, under which gun possession is protected, but courts do not view self-defense as a central purpose of the right, and therefore uphold broader restrictions on weapons carrying. I show that Heller and McDonald embraced the first tradition and rejected the second. Once lower courts and scholars look to the correct line of precedent, they will find powerful arguments that the Second Amendment’s scope includes a right of individuals to carry handguns in public for self-defense.